It Starts: In “Trump’s America,” the Marriage Equality Battle Takes Off in Texas

On the day of Trump’s inauguration, the Texas Supreme Court announced it will now hear a case it previously rejected that seeks to strip spousal benefits from same-sex partners and narrow the scope of federal marriage equality in the state. Experts say the decision might ultimately trickle down to kick off similar legal challenges in other states.

The Texas Supreme Court building

Caving to pressure from right-wing anti-LGBTQ extremists in the state, the Texas Supreme Court will hear a case that could set precedent in threatening the security of marriage equality across the nation.

The state’s high court previously declined to review a lower court’s decision that barred individual cities from withholding from married same-sex couples the rights and protections entitled to their opposite-sex counterparts. The Texas Supreme Court made that determination based on the fact that the U.S. Supreme Court decided (in Obergefell v. Hodges) the federal government’s denial of marriage rights to gay and lesbian couples was unconstitutional—making marriage equality legal across the nation in June of 2015.

The Texas Supreme Court’s previous rejection of the Pidgeon v Turner, the case in question, predictably drew fiery ire from state Republican officials and anti-LGBTQ activists, who urged the (elected) justices to hear the case, which seeks to allow cities in Texas to discriminate against same-sex couples. But with the Trump administration now in full swing, and renewed vitriol on the right festering into possible widespread attacks on LGBTQ rights, the state’s highest court bowed to Republican demands, agreeing to review the case in March (It’s worth noting that the shocking announcement came on the very day of Donald Trump’s inauguration).

If the Texas Supreme Court’s justices kowtow to anti-LGBTQ extremists and what they may perceive as political pressure and/or threats to their respective reelection bids, the state would roll back crucial aspects of marriage equality for its gay and lesbian citizens—and other states could follow suit. The strength of the federally enshrined principle that all married couples—regardless of sexual orientation—deserve the same treatment under law, would attenuate and face almost certain peril in other legal and legislative battles.

The Situation

Currently, the justice’s opinions issued in the Obergefell v. Hodges U.S. Supreme Court marriage equality decision bar cities from denying married same-sex couples any of the spousal benefits provided to opposite-sex couples under federal law.

But back in 2001, the cultural climate surrounding LGBTQ issues was a horse of a different color.

That same year, Houston amended its city charter to prohibit gay and lesbian city employees from sharing benefits with their partners.

Then, in 2005, Texas amended its constitution to define marriage as a union between a man and a woman—prohibiting state officials from providing marriage protections to any couples but straight ones.

Finally, in 2013, openly lesbian former Houston Mayor Annise Parker tossed those restrictions by directing city employees to grant legal status and spousal benefits to any same-sex couple wed in a state or city with legalized marriage equality.

Yet, not everyone jumped for joy (shocker!) in the wake of Parker’s progressive action: Two anti-LGBTQ Houston residents, Jack Pidgeon and Larry Hicks, legally challenged the city of Houston and Parker, claiming that the marriage directive violated Texas’s constitution and demanding an injunction to stay the mayor’s order. It was granted—temporarily.

The city appealed the injunction, and while the plaintiffs and defendants waited for the Texas Court of Appeals to rule on the case, Obergefell happened, rendering the entire argument moot (or so it would seem). Reasonably, the Texas Court of Appeals declined to get involved in the Houston legal debate once U.S. law adapted to treat marriage equality as a federally-protected right. As recently as this past September, the Texas Supreme Court upheld the lower court’s decision, to, for lack of a better term, stay the hell out of it—in an 8-1 ruling opposed to reviewing Pidgeon v. Turner (the case’s name was changed from Pidgeon v. Parker once Houston elected a new mayor, Sylvester Turner).

John P. Devine (far left) with the other justices of the Texas Supreme Court

Justice John P. Devine was the dissenting only member of Texas’s high court on the matter. His warped interpretation of the SCOTUS ruling? “Marriage is a fundamental right. Spousal benefits are not.” He continued this laughable line of argument, propagating that Texas holds an “interest in encouraging procreation,” and that “offering certain benefits to opposite-sex couples would encourage procreation within marriage.”

“After all, benefits such as health insurance provide financial security as couples decide whether to have a child. An opposite-sex marriage is the only marital relationship where children are raised by their biological parents. In any other relationship, the child must be removed from at least one natural parent, perhaps two, before being adopted by her new parent(s). This does not diminish any child’s inherent dignity, a fact the City presumably recognizes by extending benefits to their employees’ children regardless of the employees’ marital status. But it does explain why the State might choose to direct resources to opposite-sex couples.” — Justice John P. Devine

Latching on to Justice Devine’s faulty and biased assertions, anti-LGBTQ forces got right to work in their deplorable crusade against the September Pidgeon v. Turner decision, mustering all their might (and apparently, hate) to lobby religious and right-wing state elected leaders, as well as the Texas Supreme Court, so the bogus case would be heard in the state’s high court. With the nation’s divisions on social justice issues so clearly on display amid the flotsam and jetsam of Trump’s flabbergasting election and subsequent inauguration, they’ve finally gotten their wish. March 1, the Texas Supreme Court will begin hearing arguments on Pidgeon v. Turner.

Why does this matter to the LGBTQ community outside of Texas?

In such a petrifying political era for progressives, it’s tempting to view the Texas Supreme Court’s decision to rule on Pidgeon v. Turner as an issue isolated to its home state—and a devastating outcome as a long shot. The nation’s highest court already secured our community’s rights to equal nuptials, and the constitutional argument in favor of full marriage equality remains clear and strong. We’ve all grappled with enough bad news for a lifetime, and it’s easier to sit back and hope for the best when we think occurrences like this, albeit dismaying, probably won’t effect us. Why act like alarmists?

Well, because experts predict that if the Texas high court panders to anti-LGBT constituents as opposed to adhering to sound and fair judicial reasoning, the consequences could reach far beyond the harm they’ll inflict on gay and lesbian Texans. A bad ruling in Pidgeon could trickle down to other states with robust, organized and determined anti-LGBTQ industries and political groups, who will stop at nothing until they ultimately undercut the full marital rights and freedoms we hoped Obergefell v. Hodges permanently and unquestionably guaranteed to all U.S. same-sex couples.

On the other hand, the members of the Texas Supreme Court may actually do their jobs and defer to the seniority of SCOTUS. Either way, however, they will waste taxpayer dollars to vote on the civil liberties of a long-marginalized community merely because anti-LGBTQ activists and Republicans told them they should—or else! Or, perhaps they fear public backlash from anti-equality Texans in the next election. Most likely, it’s a combo of both.

Same-sex couples merely want to preserve their freedom to love and wed with the attached protections marriage equality constitutionally affords. Will the Texas Supreme Court stay on the right side of history? Or will they bend to the whims of anti-gay forces in “Trump’s America,” potentially setting off marriage equality wildfires in other states that we hoped SCOTUS had snuffed out for good? Stay tuned, folks. Anti-LGBTQ activists seem to think it’s some sort of game to play with our rights and lives, and in Texas, it’s one they just might win.